There was a time when public debate about the death penalty in the United States focused on concerns about racial discrimination, lack of competent counsel for indigent defendants, and executing the innocent. But with the Supreme Court set to hear oral arguments early next year on whether lethal injection is cruel and unusual punishment, the death penalty debate has shifted to how we put the condemned to death.
Those who support the death penalty argue that lethal injection is the best way to "administer death." Even if the condemned person experiences a few minutes of excruciating pain, it is humane enough for a convicted murderer. Some of those opposed to the death penalty worry that if lethal injection is replaced by a truly pain-free method, the public's appetite for executions will grow. Both sides agree that a debate about lethal injection will get us nowhere, but in fact, having the debate is useful, because the story of lethal injection mirrors that of the death penalty itself.
Botched lethal injections are--like wrongful convictions and incompetent defense attorneys-- are the product of an astonishing history of negligence, incompetence, and irresponsibility by state officials responsible for implementing a punishment that the public supports, but doesn't want to know too much about.
Lethal injections look peaceful and painless--which is why all but one of the 38 death penalty states have adopted them to replace the more gruesome spectacles of execution by hanging, firing squad, poison gas, or electrocution. But looks can be deceiving. With lethal injection, the condemned prisoner is strapped to a gurney and injected with a massive dose of the anesthetic sodium pentothal, which should render him unconscious and stop his breathing. Next he is injected with pancuronium bromide, a drug that paralyzes the muscles, including the lungs and diaphragm. Finally, he is injected with potassium chloride, which should bring swift cardiac arrest.
All of the states that use lethal injection copied this bizarre and dangerous drug protocol from Texas, the national leader in executions, which itself had simply taken the idea from an Oklahoma medical examiner with no pharmacology experience who concocted the protocol in 1977.
When the drugs in the three-drug lethal injection protocol are administered properly, the prisoner should be motionless-- as well as unable to feel pain--within a minute or two. But execution logs from California and North Carolina reveal body movements inconsistent with the proper administration of the lethal injection drugs, particularly the anesthetic. If the prisoners were not sufficiently anesthetized, they may have felt themselves suffocating from the pancuronium bromide, or they may have felt excruciating pain as the potassium chloride coursed its way through their veins to their heart.
Indeed, potassium chloride is so painful that US veterinary guidelines prohibit its use on domestic animals unless a veterinarian first ensures that they are deeply unconscious. But most states do not require anyone to stay at the condemned prisoner's side to make sure he is in fact deeply anesthetized and unconscious before the second and third drugs are administered.
It should not be surprising that since 1982, states have recorded at least 40 visibly botched executions, in which prisoners showed physical distress during the process --not to mention executions where the prisoner may have felt pain but was unable to express it because of the paralytic drug. Court records in the handful of states where lethal injection is being challenged reveal a sorry litany of incompetence and bungling.
And when things have gone wrong during an execution, states have done little to fix the problem. States react to questions raised about lethal injection the same way they react to claims of other death penalty injustices--with barely disguised indifference. When courts or governors have ordered states to review their execution protocols because of evidence that they may put prisoners at risk of unnecessary pain, state officials chose not to undertake a careful inquiry, but rather made superficial changes that fail to address the inherent flaws of the three-drug protocol. States have been advised of--and routinely rejected--a one-drug protocol, the administration of a massive dose of a long-acting barbiturate. The reason? Although the inmate would not experience any physical pain, it would take him as long as 40 minutes to die, which would be difficult for the execution team and witnesses to watch.
If the United States is going to retain the death penalty, it must ensure that executions are conducted in as pain-free a manner as possible. But there is no neat, easy, antiseptic way to kill a human being. The lethal injection debate brings this reality into sharp relief, and forces the public to acknowledge that when it comes to the death penalty, nothing about the process, from conviction to killing, has ever been just.
That's why the more we talk about what executions actually look and feel like, the more public support for the death penalty falls away as we grapple with the graphic details of the killing process. No matter how pain-free we make an execution, it will always be taking a human life. And it will always be inhumane.
